Feb 26

To the best of our knowledge, a few key members of the Government and their advisors have spent one year on drafting a new Constitution for Sri Lanka.  However, no firm details of its contents have been revealed.  Instead, interested institutions and individual citizens were asked in January this year to send in, on or before 10 February, their preferred proposals for consideration and evaluation by a 20-person Public Representations Committee on Constitutional Reforms (PRCCR).  The question that immediately arises is whether PRCCR will accept only those suggestions that do not go counter to any of the mysterious provisions of the still-secret Government draft and ignore the others.  If not, what are the objective criteria that the PRCCR will employ in accepting or rejecting a particular proposal?  

We ourselves sent in by courier 24 copies of a 35-page proposal on 9 February and an emailed reminder on 17 February but have had no response to date, which gives cause for concern as to how seriously the public’s views will be taken.

Let us now look at a topical issue, viz. the number of MPs that Parliament should have.  By comparison with countries which have much larger populations, we already have too many.  There are 225 MPs for a population of about 21 Million giving an average representation of one MP for every 90,000 citizens or so.  At this rate, India would have to have a Parliament of over 13,000 MPs!

Regarded from another point of view, fewer than one-half of our MPs attend Parliament with anything approaching an acceptable measure of regularity.  In a recent exercise designed to train our MPs on the functioning of Sectoral Oversight Committees, only 55 or so MPs had attended these very important sessions.  Guided by this attendance rate, and even after introducing a considerable measure of generosity, we see that there would appear to be little or no benefit in having a Parliament of more than about 110 members.

In 2007/2008, the Organisation of Professional Associations (OPA), with the voluntary participation of in-service and retired public servants who were then holding or had earlier held high office, worked out carefully that the number of Ministries could conveniently and efficiently be limited to 25 in all.  If, therefore, Parliament were to have 25 Permanent Parliamentary Committees of five MPs each, a Speaker, a Deputy Speaker and an Assistant Speaker, the total number of MPs required would only be 128.

The pressure by Sri Lankan politicians to have a bigger Parliament with more than 225 MPs, with some of them even mentioning larger numbers (!), is founded solely on the desire of party leaders to accommodate those importunate supporters of theirs who would ordinarily not be within the chosen 225 and who would, otherwise, have to be satisfied with a place in local government.  Just as government leaders have got into the habit of creating vacancies outside the relevant cadres in government departments in order to help take in all those who graduate from our seats of higher learning, irrespective of employability, they appear to want to extend this practice to create superfluous seats in Parliament to accommodate those ambitious hopefuls who are in a position to bring in large financial contributions of questionable provenance for election expenses and a surfeit of belligerent supporters for campaigning and “jousting” with their opponents.  Once these candidates get into Parliament, their principal endeavour would be to become a Minister or a Deputy Minister whereby they would get into a position to recover their elections expenses, and a great deal more, by misusing the powers so acquired.

Apart from the aforementioned issues, it is our position that our Constitution should have a number of clear goals to help the Country go forward without dissipating its resources through disunity or corruption.  Some of the more important goals are listed below –

a.     The Constitution should be secular so that fissiparous group differences will not lead to the people wasting their energies competing with each other but, instead, encourage them to join hands to work for Sri Lanka’s progress.  A secular Constitution will greatly facilitate the creation of a clear Srilankan identity which would apply to every citizen without distinction.

In short, religion is a personal matter and the State should progressively reduce its involvement in religious affairs.

b.     The official name of Sri Lanka should be “the Republic of Sri Lanka” without tautological terms like “democratic” or politically tendentious terms such as “socialist”.

c.     A parliamentary system is preferable to a presidential system subject to the provision of rigorous checks and balances to prevent the Prime Minister acting dictatorially with little restraint.  Otherwise, why change?

d.     There is no need for a second chamber because it usually serves only to delay but not to prevent Parliament passing bad bills.  If suitable checks and balances are incorporated in the Constitution, there would be no need for an unproductive second chamber.

e.     Every bill should go through several stages of primary approval and secondary approval, with the final approval being given by Parliament.  For at least each of the more important bills, there should be provision for a White Paper to be produced for public discussion and comment.  This could be done immediately after primary approval so that the secondary approval would have the benefit of inputs by the public.

f.      Parliament should have only 128 MPs, of whom 125 would be divided into 25 Permanent Parliamentary Committees (PPCs) of 5 MPs each.  Each of these PPCs must have a permanent cadre of technocrats to carry out the background research and detailed formulation of the contents of proposed bills.

g.     There should be a clear separation of powers between the Ministers in Parliament and their executive administration arms, which should be headed by Executive Secretaries who would be solely responsible for the implementation of the programs and projects approved by Parliament, within the allocated financial provisions.  The Minister should be responsible for identifying programs and projects and getting Parliament’s approval for these and then communicating Parliament’s requirements to the Executive Secretaries.  Ministers should not be given the authority to interfere in the procedures authorised by the relevant regulations in respect of appointing technical committees, prequalifying tenderers, awarding contracts and so on.

h.     The Auditor General’s Department’s powers and functions should be enhanced to help monitor contemporaneously the performance of the Executive Secretaries and their Departments in keeping to Parliament’s approved programs and allocated funds.  This key department should have a legal division that, in cooperation with the Director of Public Prosecutions (see “w” below), would take action against any deviations from approved programs and procedures.

i.      Dual citizens should not be permitted to vie for or hold elected office.  They may be employed in the administration other than as Executive Secretaries or their principal deputies.

j.      The Directive Principles of State Policy should not be a valueless ornament as it is in the 1978 Constitution.  Article 29 of the 1978 Constitution should be repealed.  Where there are lacunas in the law, these Directive Principles should be utilised by the Supreme Court to bridge such lacunas.

k.     Pending the passing of laws to bring Sri Lanka’s statutes into line with the various international treaties, protocols and covenants that Sri Lanka has signed, the Supreme Court should be empowered, at its discretion, to pass judgments based on the said treaties etc.

l.      Sinhala, Tamil and English should all be declared to be National Languages.  Parents, regardless of their own language affiliations, should be free to have their children educated in any one of these three languages.

m.    The People shall be supreme, the Constitution shall be next in the line of precedence, and Parliament and all other elected bodies shall take third place in the “supremacy” hierarchy.

n.     Parliament should not have any judicial powers.

o.     The Judicial Service Commission should consist of the Chief Justice, the two most senior SC Judges, three distinguished professors of law and three distinguished senior lawyers.  The JSC should be responsible for the appointment of judges and magistrates, their promotions, their transfers and their disciplinary control.  Once Judges have reached the Supreme Court, seniority shall strictly prevail in the appointment of the Chief Justice.

p.    The powers of all elected bodies should be defined and fixed in the Constitution in accordance with the principle of subsidiarity.  Parliament should be empowered to deal with matters which can only be handled on a national scale such as defence, foreign affairs, immigration, emigration, currency, national taxes of every kind, ports, airports, railways, electricity, telecommunications, customs, nature reserves, narcotics, terrorism, national standards of every kind, major highways etc.

q.     Electoral reforms should be based on a combination of the first-past-the-post and proportional voting systems.

r.      Candidates for election must be required to fill in a form furnished by the Elections Commission which would effectively serve as the candidate’s bio-data.  These forms shall be distributed (with appropriate translations into the other two National Languages) to every household in the candidates’ electorates.  Public meetings, processions, posters and loudspeakers should be banned from being employed as campaign tools; the money so saved would be more than sufficient to distribute the completed bio-data sheets.

s.      There should be no politicians in the Constitutional Council.

t.      Elections should be held on a fixed day of the year, once every four years, and no one should have the right to dissolve Parliament or any elected body prematurely except in the event of war or a major natural disaster.

u.     There should be a not-too-complicated provision for the temporary recall of elected representatives against whom there is strong prima facie evidence of misconduct of a kind that is incompatible with their position of public trust.  The recall may be rescinded or confirmed depending on the outcome of the relevant investigations.

v.     Any increase in emoluments of elected representatives that is passed by an elected body shall only come into force after the next set of elections is held.

w.    The Attorney General responsibilities should be reduced to giving advice to government and government institutions.  A separate and independent Director of Public Prosecutions should be created to deal with prosecutions of persons charged with offences against the laws of the land.

x.     Delimitation exercises are usually carried out with race, religion, caste and other similar considerations in mind.  Therefore, the boundaries of electoral units should be fixed once and for all as in most stable countries so as to eliminate this undesirable practice.  It should be kept in mind that the Seychelles, Sri Lanka and India have only one vote each in the UN General Assembly despite the disparities in their populations.  Hence, the relatively trivial variations in the populations of our electorates should not be taken as an excuse for tinkering with electoral boundaries.

The above recommendations have already been made in a little greater detail to the PRCCR.

Dr A.C.Visvalingam
President, CIMOGG

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